On appeal from the Final Decision of the Commissioner, New Jersey Department of Environmental Protection.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Waugh and Newman.
Petitioners Ronald and Rita LaRoy and Dennis Trombitas appeal from that portion of the final administrative order of the Commissioner of the New Jersey Department of Environmental Protection (DEP) denying their challenge to conditional general permits issued by the agency. We agree with petitioners' legal arguments on appeal only to the extent that the governing regulations do not permit DEP to require the owners of adjacent properties to agree amongst themselves on the creation of a transitional area averaging plan (TAAP). However, we disagree with petitioners to the extent they contend that they could not, through a voluntary agreement among themselves, propose a TAAP to take advantage of the conditional general permits issued by DEP and facilitate the overall use of their property. Because we believe that the latter was the intention of DEP, we affirm the decision on appeal, as interpreted.
On August 14, 1973, the LaRoys and Trombitas purchased alternating lots on Valley View Drive in Rockaway Township from a single prior owner.*fn1 Ronald LaRoy and Trombitas are half-brothers. The LaRoys took title to Lots 50, 52, 54, 56, and 63;*fn2 Trombitas took title to Lots 49, 51, 53, 55, and 64. Each lot is assessed separately by the Township for municipal taxes. Ronald LaRoy, who paid for the purchase of all of the lots, pays all of the property taxes on both his and Trombitas's lots. Other expenses are paid separately by the parties.
In March 1996, in a different proceeding, petitioners, acting jointly, filed a complaint alleging a regulatory taking of the ten lots they collectively owned due to the constraints imposed by the Freshwater Protections Act (FWPA), N.J.S.A. 13:9B-1 to -30. The FWPA is the State's comprehensive wetlands protection strategy. It creates three different types of regulated natural resources: (1) freshwater wetlands; (2) transition areas; and (3) inland open waters. The FWPA regulates certain activities within these natural resources such as dredging, filling, soil removal, and construction.
N.J.S.A. 13:9B-23(c) allows DEP to issue general permits on a statewide or regional basis for certain regulated activities if the activities will have "only minor impacts on freshwater wetlands." N.J.S.A. 13:9B-23(d) allows DEP, when issuing general permits, to impose specific conditions on the permits. If an applicant is ineligible for a general permit, the applicant can request an individual wetlands permit. N.J.S.A. 13:9B-9. Finally, an applicant can request certain transition area waivers, including individual hardship waivers and individual special-activity waivers. N.J.S.A. 13:9B-18.
In November 1996, during the pendency of the takings litigation, the petitioners filed a joint application for FWPA general permits for four of their lots - Lots 49 and 55 owned by Trombitas, and Lots 50 and 56 owned by the LaRoys. In December 1999, DEP granted plaintiffs conditional State Wide General Permits No. 10 (general permits) for three of those lots - Lots 49, 50, and 55, which are the ones involved in this appeal. The general permits were conditioned on petitioners submitting a TAAP, N.J.S.A. 13:9B-18(b), which allows landowners to reduce the transition area in one location if they correspondingly increase the transition area in another location. See N.J.A.C. 7:7A-6.2(a). The general permits also required that petitioners file for a Stream Encroachment Permit (encroachment permit) for each lot. The general permit application for the fourth parcel, Lot 56, was denied.
Petitioners did not appeal the imposition of the conditions on the general permits or the denial of the general permit for the fourth lot. Instead, they continued to pursue their takings claim with respect to all of the lots.
In August 2000, DEP moved to dismiss the regulatory takings litigation, arguing that the takings claim was not ripe because petitioners had not exhausted their administrative remedies.*fn3
Petitioners filed a cross-motion for summary judgment. On October 5, 2001, the motion judge granted DEP's motion to dismiss, finding that petitioners' taking claim was not yet ripe.
Petitioners appealed the dismissal and we affirmed. LaRoy v. Twp. of Rockaway, No. A-1477-01T2 (App. Div. Mar. 7, 2003) (LaRoy I). In determining that petitioners had not ...